concurring in part and dissenting in part.
Although I agree with the Court on the double jeopardy and ineffective assistance of counsel issues, I nonetheless believe that we should issue the writ, requiring a new trial. The prosecution’s case is extremely weak. Petitioner should have a new trial because in such a case, the prosecutor’s closing argument — uncured by the trial court — may well have confused the jury into thinking that petitioner bore a burden to prove his innocence.
Petitioner was convicted solely on the basis of the victim’s weak identification. The only other evidence even arguably in-culpatory was the fact that he (and 32 percent of all males) had the same seminal fluid type as the rapist-robber. This scientific evidence formed a substantial part of the prosecution’s evidence.
As petitioner’s lawyer attempted to argue to the jury, victim and eyewitness identification are unfortunately unreliable as sole evidence; they may produce — and have produced — tragically erroneous results. See, e.g., United States v. Wade, 388 U.S. 218, 228 & n. 6, 87 S.Ct. 1926, 1933 & n. 6, 18 L.Ed.2d 1149 (1967) (“[Tjhe annals of criminal law are rife with instances of mistaken identification.”). In such cases we must be vigilant to see that an innocent defendant is not sent to jail for a crime he did not commit. There is a substantial risk that that happened in this case.
Here the victim never described her assailant as mustachioed despite numerous opportunities to do so, including her participation in creation of a police drawing based on her description. The evidence was strong that before, at the time of, and after the date of the rape-robbery this petitioner had a mustache.
The victim did pick petitioner’s photo from a mug book,1 and later picked him from a lineup.2 Curiously, although she noted from the first that her assailant had a distinctive voice, neither at the lineup nor at trial was the victim asked to comment on petitioner’s voice.
Against this weak identification testimony, petitioner’s case included (1) an alibi defense based on testimony from his fiancee and two friends whom the jury obviously did not believe; (2) the fact that a full Pepsi bottle, later found at the crime scene and described by the victim as being in her assailant’s possession, bore fingerprints that were not petitioner’s; and (3) a vigorous attempt to combat any inculpatory effect resulting from the 32-percent seminal fluid evidence.
It was in this context that the prosecuto-rial misstatements occurred.
The majority excuses these comments because, viewing the totality of the circumstances, it concludes that petitioner’s trial was “not fundamentally unfair” in violation of due process, citing Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974).
*1413The inquiry must be whether the prosecutor’s remarks, uncured by the trial court, impermissibly misstated petitioner’s burden of production and shifted the burden of proof from the government to petitioner, thus abrogating the fundamental presumption of innocence to which he was entitled. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); United States v. Smith, 500 F.2d 293 (6th Cir.1974).
The usual analysis of prosecutorial misconduct in this Circuit is the four-factor approach alluded to by the majority:
In every case, we consider the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury, and the strength of the competent proof to establish the guilt of the accused.
Angel v. Overberg, 682 F.2d 605, 608 (6th Cir.1982) (quoting United States v. Leon, 534 F.2d 667, 679 (6th Cir.1976)).
As discussed supra, I believe that the weakness of the State’s identification case here focused the jury’s attention upon the seminal fluid evidence, that the prosecutor’s remarks about petitioner’s “burden” therefore took on added importance, and that this importance was magnified further when the prosecutor repeatedly objected to defense counsel’s attempts to rebut the questioned remarks in her own closing argument. The trial court’s failure to cure the prosecutor’s remarks, or even to tell the jury that the prosecutor’s objections to defense counsel’s argument had been overruled, must have served further to increase the possibility of jury confusion.
The due process problem is accentuated by the way tests were run on the semen taken from the victim’s vagina on the night of the rape. The prosecution performed the incriminating scientific tests on the seminal fluid to establish major blood type but then declined to perform further more specific blood-type tests that would have significantly narrowed the universe of possible rapists. The prosecution sought to cast on the defendant the burden of performing and placing in evidence these further more specific scientific tests even though the vaginal semen to be tested was in the possession and control of the state.
The majority acknowledges that “the prosecutor’s argument did have some tendency to mislead” but deems it excusable because (1) the prosecutor was responding to a defense argument that the State could have performed additional tests upon the seminal fluid that might have exonerated petitioner, and (2) the trial judge “carefully instructed the jury that the defendant was not required to produce any evidence ... and told the jury that objections by counsel and rulings by the court were not evidence and should not be considered as evidence.”
I do not agree that the prosecutor’s remarks either were a response invited by defense counsel or were adequately cured by the trial court’s general instructions to the jury on presumption of innocence and burden of proof. This is not a case that should implicate the “invited response” doctrine. See Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). The “invited response” doctrine at best would take a “tit-for-tat” attitude toward prosecutorial remarks made in response to an improper defense argument. As the Supreme Court said in United States v. Young, however, Lawn and similar cases
should not be read as suggesting judicial approval or encouragement of response-in-kind that inevitably exacerbate the tensions inherent in the adversary process. As Lawn itself indicates, the issue is not the prosecutor’s license to make otherwise improper arguments, but whether the prosecutor’s “invited response,” taken in context, unfairly prejudiced the defendant.
In order to make an appropriate assessment, the reviewing court must not only weigh the impact of the prosecutor’s remarks, but also take into account defense counsel’s opening salvo.
470 U.S. 1, 12, 105 S.Ct. 1038, 1045, 84 L.Ed.2d 1 (1985).
*1414Defense counsel’s opening salvo here was not an improper argument. She merely sought to call the jury’s attention to the fact that the state had within its sole power the opportunity to take evidence of questionable relevance3 and test it further but, in the words of its own expert, had not done so because of cost consideration. It was in response to this criticism that the prosecutor first suggested that perhaps the defense should have undertaken the additional tests “as part of the defense case” instead of “putting the whole burden” on the state because “our system really isn’t set up that way” and “that’s not really our obligation.” The record is unclear whether it was. technically possible for the tests to be performed by the time trial defense counsel came into the case. This is not a case in which a misstatement by the prosecutor, though regrettable, merely “rightfed] the scale” following an equal but opposite misstatement by defense counsel. Cf. United States v. Young, 470 U.S. at 13, 105 S.Ct. at 1045.
The majority says that the trial court’s instructions “left no room for doubt” that petitioner “had no obligation to prove anything, not blood type, not anything else.” I do not agree.
It is true that defense counsel chose not to interrupt the prosecutor’s objectionable closing argument with a contemporaneous objection.4 And it is true that the trial judge did give, at the conclusion of all proceedings immediately before the jury retired for deliberation, the following instructions:
Basic to our system of criminal justice is the first hope that a person accused of a crime is presumed to be innocent. This presumption of innocence starts at the very beginning of the case and continues throughout the trial. Each and everyone [sic] of you must be satisfied beyond a reasonable doubt, after deliberating, that the Defendant is guilty before you can return a verdict of guilty. You must begin your deliberations with the presumption of innocense [sic] foremost in your mind. The fact that the Defendant was arrested and is on trial is not evidence against him. There must be evidence introduced that convinces you the Defendant is guilty beyond a reasonable doubt.
The law does not require a defendant to prove innocence or to produce any evidence whatsoever. This burden is upon the prosecution throughout the entire course of the trial, and at no time does the burden of proof shift to the defendant. This burden means that each element of the crimes charged must be proven beyond a reasonable doubt.
Trial Transcript IV-57.
These instructions, while unexceptionable, did not specifically address either the issue of the seminal fluid tests or the prosecutor’s remarks concerning petitioner’s “burden.” Nor was a “strong curative instruction,” Caldwell v. Mississippi, 472 U.S. 320, 339, 105 S.Ct. 2633, 2645, 86 L.Ed. 2d 231 (1985), given immediately after the offending remarks, as the Supreme Court recommended in United States v. Young, 470 U.S. at 13-14, 105 S.Ct. at 1045-46, or given somewhat later but with specific reference back to the misleading remarks, as the trial court did in Donnelly v. DeCristoforo, 416 U.S. at 640-41 & n. 9, 94 S.Ct. at 1870 & n. 9.
As the Court noted in DeChristoforo:
[T]he trial court took special pains to correct any impression that the jury could consider the prosecutor’s statements as evidence in the case. The prosecutor, as is customary, had previously *1415told the jury that his argument was not evidence, and the trial judge specifically re-emphasized that point. Then the judge directed the jury’s attention to the remark particularly challenged here, declared it to be unsupported, and admonished the jury to ignore it. Although some occurrences at trial may be too clearly prejudicial for such a curative instruction to mitigate their effect, the comment in this case is hardly of such character.
416 U.S. at 644, 94 S.Ct. at 1872 (footnotes omitted).
When erroneous and highly prejudicial remarks are made to the jury, the trial court’s action or inaction in curing the defect is, in my view, the critical contextual variable in determining whether the misstatement may result in deprivation of a fair trial. This is the factor that best explains why the Supreme Court found no fundamental unfairness in Donnelly v. DeChristoforo, United States v. Young and Darden v. Wainwright, but did in Caldwell v. Mississippi. See Darden, 477 U.S. 187, 106 S.Ct. 2464, 2472-73 & n. 15, 91 L.Ed.2d 144 (1986); Caldwell, 472 U.S. at 339, 105 S.Ct. at 2645.
Finally, as must be obvious, because of the relative paucity of proof against petitioner and the realistic likelihood of jury confusion, I cannot regard what happened in this case as harmless error. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). I believe there is too great a likelihood in this case that the defendant did not commit the crime.
For the reasons I have stated, the writ should issue conditioned upon the state affording petitioner a new trial.
. Petitioner’s photo was in the mug book due to a previous conviction for receiving stolen property.
. Because the photo identification preceded the lineup, it seems to me that the two "identifications" cannot be viewed as independently inculpatory. For the hazards of photo identification, see e.g., Estrich, Rape, 95 Yale L.J. 1087, 1088 (1986).
. The Michigan courts of appeals themselves are divided on whether seminal fluid typing evidence is relevant enough to avoid exclusion under the state version of Fed.R.Evid. 403. See, e.g., People v. Smith, 149 Mich.App. 189, 385 N.W.2d 654, 657 (1986); People v. Goree, 132 Mich.App. 693, 349 N.W.2d 220, 224-25 (1984); People v. Camon, 110 Mich.App. 474, 313 N.W.2d 322 (1981); People v. Sturdivant, 91 Mich.App. 128, 283 N.W.2d 669 (1979). The Michigan Supreme Court has yet to address this difficult issue of relevancy.
. Defense counsel did inform the trial judge, when the prosecutor objected to her counterargument on the burden of proof issue, that the prosecutor had "seriously misstated the law to the jury.” Trial Transcript IV-18.